Unable to agree on whether their children should attend school in-person or online this fall, Canadians with co-parenting arrangements are increasingly asking the courts to settle the matter for them.

One judge in Ontario noted in late August that her court had received "several urgent motions" along those lines in the past week and expected more to come before September arrived.

“School attendance in the midst of a pandemic is a challenging issue for many parents," Justice Andrea Himel wrote in an Aug. 25 decision.

"Unfortunately, for some separated and divorced parents this is another battleground; one more arena where their child may become the prisoners of the war."

Although the number of cases where Canadian judges have made rulings remains quite small, a clear theme has emerged – and given the prominent position existing case law holds in the Canadian justice system, it is likely that cases yet to be decided will proceed in the same fashion.

In most cases, judges are concluding that if governments say it is safe to hold classes in-person, it is not for them to find otherwise. Therefore, most judges are siding with the parents who want their children to be physically present at school this fall.

Exceptions are only being made when the opposing parents can provide robust evidence that their child faces special circumstances that could lead to in-person school attendance posing a unique risk to them or others they come in contact with.

This approach can be traced back to two decisions made by the Superior Court of Quebec in May, as the province prepared to reopen its classrooms following a two-month hiatus brought on by the COVID-19 pandemic.

In one, Justice Claude Villeneuve of Bedford, Que. found that "it is not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination in a pandemic situation," according to a translation of his decision, and ordered that the two children at the centre of the dispute resume attending their school.

In the other, Justice Claudia Prémont of Chicoutimi, Que. declined to order that a six-year-old boy return to the classroom because of a family member who was considered to be at an elevated risk of serious complications should they contract the novel coronavirus.

The legal record fell silent after those decisions, as the issue was rendered moot by most other provinces deciding to keep the rest of the school year virtual. Only in the past few weeks have questions about schooling amid the pandemic returned to courtrooms, thanks to parents in Ontario arguing over the safety of the government's plan in that province.

A judge in Ottawa ruled Aug. 20 that a mother could move to New Brunswick with her eight-year-old son, taking him away from his father, in part because of the lower COVID-19 risk there.

More often, though, the cases being heard pit a parent who wants their child to return to a physical classroom against an the other partner who says they do not accept that doing so is safe.

In the case heard by Himel in Newmarket, Ont., for example, a mother wanted her nine-year-old son to be able to attend school when it resumed, while the boy's father wanted him to stick to virtual classes until the schools "safety protocols are proven successful."

Himel sided with the mother. Acknowledging that even the Ontario government has said it cannot be considered completely safe to put children back in classrooms, "there is no end in sight to the pandemic and, as such, no evidence as to when it will be 100% safe for children to return to school."

Her reasoning was echoed Sept. 1 by Justice Jasmine Akbarali, who similarly ruled that it was in the best interest of a six-year-old Toronto girl (identified in the decision as N) to return to school, despite her father's desire to see her remain in virtual classrooms and the increased COVID-19 risk her stepmother may face as a frontline health-care worker.

"The point is not that the stepmother's work is placing N at risk; rather, it is that as life returns to some kind of new normal, risk cannot be eliminated," Akbarali wrote.

The Toronto judge laid out six factors that, in her view, judges should consider when they are presented with similar requests:

  • Risk of COVID-19 exposure to the child if they are in school versus not in school
  • If the child or anyone in their family faces an increased risk from COVID-19
  • Risks to the child's mental health, well-being, and social and academic development from online learning
  • Measures proposed that may lessen any of these risks
  • The child's wishes, if known
  • The ability of the parent or parents to support online learning

None of this means that wanting a child to attend school in-person automatically means winning the argument when it goes before a judge. One judge in Ontario recently ruled that two siblings must only attend class virtually, because one of them faces an increased risk due to asthma.

Another father learned this lesson when he was denied a request to alter his existing custody argument so that his two children could live with him and attend school in Burlington, Ont., rather than live with their mother and attend school virtually, as she wished.

"In my humble opinion, the courts are not generally in a good position to second-guess the decisions of parents on this issue of bricks and mortar versus remote school programming," Justice Clarence Conland wrote in his Sept. 1 decision.

"These children are strangers to me.  I’m not about to play 'big brother', professor, psychologist and scientist all rolled-up into one and start opining on things that I know nothing about."